Licence Appeal Tribunal File Number: 23-009515/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Erin Gebe
Applicant
and
Northbridge General Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
D. Joel Dick, Counsel
For the Respondent:
Paul C. Sykes, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Erin Gebe (“the applicant”) was involved in an incident on September 21, 2021 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“the Schedule”). The applicant was denied benefits by Northbridge General Insurance Company of Canada (“the respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“the Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is whether the applicant was involved in an “accident” as defined in section 3(1) of the Schedule.
RESULT
3The applicant was involved in an “accident” as defined in s. 3(1) of the Schedule.
ANALYSIS
Background
4A video of the incident was provided by the Toronto Police Service which depicts what occurred. The video is approximately one hour long and the recording includes audio. On September 21, 2021, the applicant was a passenger in the rear of a Toronto police van while in police custody. The applicant was not wearing a seatbelt and was handcuffed with her hands in front of her.
5She was seated on a metal bench facing a metal wall. She appears drowsy or possibly intoxicated. Throughout most of the video, the applicant has her head down, eyes closed, and occasionally rested her head against the side of the van or between her legs. Approximately 55 minutes after the applicant entered the police van, the vehicle came to a stop. She remained seated in the van waiting for the door to open so she could exit the vehicle. Over the next five minutes, the seated applicant appears to fall asleep. While asleep, she gradually leaned over to her right side, ultimately falling from her seated position, striking her head on the metal door. She sat up immediately and requested medical attention. She was assisted out of the vehicle within about a minute. The applicant sustained a cut above her right eyebrow for which she received stitches, and reportedly suffered a concussion.
6The applicant submits that she was involved in a motor vehicle accident as per the definition of an “accident’ in the Schedule. The applicant submits that she was a passenger in a van who struck her head on the interior of the vehicle, and that but for her position as a passenger when she fell, she would not have been injured. The applicant submits that the fact that she was drowsy or in police custody do not change the essential elements of the accident.
7The respondent submits that the use or operation was not a “direct cause” of the applicant’s injuries. The respondent submits that being in police custody and the decision to fall asleep without a safe place to rest were intervening events. In the alternative, the respondent submits that the dominant factor of her injuries was her passing out or falling asleep. Alternatively, the respondent submits that it was reasonably foreseeable that the applicant could have been injured while unattended in the police van, and that there was a breach of the duty of care by the police that was the direct cause of the applicant’s injuries and unrelated to the use or operation of the vehicle.
Was the incident an “accident”?
8I find that the applicant was involved in an “accident” as defined by s. 3(1) of the Schedule, for the following reasons.
9Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.
10The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused his injuries. The parties agree on the legal test but disagree on whether the facts at hand meet that test.
11In Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226, the Ontario Court of Appeal confirmed the two-part test to determine whether an incident is an “accident” as follows:
- The purpose test: Did the incident arise out of the use or operation of an automobile? and,
- The causation test: Did the use or operation of an automobile directly cause the impairment?
12The purpose test is a determination of whether the incident resulted from “the ordinary and well-known activities to which automobiles are put.” See: Greenhalgh v. ING Halifax Insurance Company, (2004), 2004 CanLII 21045 (ONCA). Put another way, for what “purpose” was the vehicle being used at the time of the incident?
13The causation test then requires the adjudicator to determine if these “ordinary and well-known activities” were the direct cause of the applicant’s impairments by focusing on the following considerations:
- The “but for” consideration;
- The intervening act consideration, which may serve to break the chain of causation where some other intervening events cannot be said to be part of the ordinary course of use or operation of the vehicle; and,
- When faced with a number of possible causes, the “dominant feature” consideration focuses on whether the ordinary and well-known activity is what most directly caused the injury.
The Purpose Test
14The respondent concedes that his incident meets the purpose test. On this basis I find that the purpose test is satisfied, and I will address the balance of the test.
The Causation Test
15Having considered the facts and evidence before me, I find that the applicant would not have sustained these injuries “but for” her use of the vehicle. But for the fact that she was a passenger in the back of the police van she would not have sustained her injuries.
16However, the “but for” test does not conclusively establish legal causation, the cause that attracts legal liability. As noted by the Court of Appeal in Chisholm v. Liberty Mutual Group, 2002 CanLII 4520 (ON CA) (“Chisholm”) the purpose of the “but for” test of causation is an exclusionary test which serves to “eliminate from consideration factually irrelevant causes. It screens out factors that made no difference to the outcome […] but the but for test does not conclusively establish legal causation.”
17The respondent submits that the applicant's injuries were not a consequence directly caused by the use or operation of the vehicle, but were a result of an intervening cause, specifically that she fell asleep or passed out in the stopped vehicle without regard to her surroundings. The respondent submits that the police van was only the location of the injury, not the cause of her injury. Alternatively, the respondent submits that the alleged breach of the police service’s duty of care was the dominant feature or direct cause of the applicant’s injuries.
18I do not agree that falling asleep and falling over can be isolated from the chain of events as distinct intervening acts. There was a chain of events flowing from her use or operation of the vehicle as a passenger.
19I find that there is a direct causal link between the use or operation of the vehicle and the applicant’s impairments. I find that the applicant’s drowsiness or inebriation and falling asleep does not constitute an intervening event. The applicant was still seated as a passenger in the van in the ordinary course of things, waiting to be escorted out when she fell asleep, fell over, and sustained injuries. I see no break in the chain of causation. Falling over in the vehicle and sustaining impairments flows from the initial use or operation. The dominant feature of the applicant’s injuries is the use and operation of the vehicle as a passenger. It was not simply the location of her injuries. The aspect that most directly caused the injury was the use or operation of the vehicle. Chisholm provides that an intervening act will only break causation if it cannot be fairly considered to be a normal incident of the risk created by the use or operation of the vehicle. Her use or operation of the vehicle was the aspect of the situation that most directly caused the injuries. It was a normal incident of the risk created by her use or operation of the vehicle, that while seated as a passenger on a bench in the back of the police van without a seatbelt or other restraint she was injured when she fell over and struck her face on the metal door.
20These circumstances are not the same as other events that the Tribunal has found constitute intervening acts, such as slipping on a sheet of ice outside of a parked vehicle. All “accident” decisions are highly fact specific, and I am not persuaded by the line of authorities relied on by the respondent.
21I find the Divisional Court decision Madore v. Intact Insurance Company, 2023 ONSC 11 (“Madore”) instructive in this case. The court considered whether an applicant who fell while cleaning the roof of his trailer was involved in an “accident” as defined in the Schedule. The court held that the test only required that the applicant was injured in the course of cleaning the trailer, and if so, that the injuries flow directly from that purpose. Further, the direct cause need not be the only cause, and there being a contributing cause does not break the chain of causation.
22The fact that the applicant fell over while seated does not change the fact that her being a passenger in a van and striking her face on the interior of the van are the direct cause of her injuries and impairments. Nor does the fact that she was in police custody change the elements of the cause of her injuries. Even if there was a breach of the duty of care by the police service, it may be a contributing cause, but that does not break the chain of causation.
23I find that the use or operation of the vehicle directly caused the applicant’s injuries. This incident does meet the definition of an “accident” pursuant to s. 3(1) of the Schedule.
ORDER
24The applicant was involved in an “accident” as defined in s. 3(1) of the Schedule.
25The application shall proceed to the substantive hearing, as previously scheduled.
Released: June 3, 2024
___________________________
Kate Grieves
Adjudicator